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Supreme Court of Canada

Municipal corporation—Contested election—Disqualification—Mayor—Hearing before one or three judges of Provincial Court—Evocation—Municipal Code, art. 314 and following—Code of Civil Procedure, art. 36, 838, 843, 847.

In an action contesting an election instituted before a judge of the Provincial Court, under art. 314 and following of the Municipal Code, the appellant alleged the absence of qualification of the respondent elected mayor, on the ground that he was the holder of a permit for the sale of beer. The respondent challenged the jurisdiction of a judge of the Provincial Court in such a case. The writ of evocation was quashed on the merits by the Superior Court. A majority decision of the Court of Appeal held, in substance, that under art. 36 of the Code of Civil Procedure, a panel of three judges of the Provincial Court was required to deal with a contested election on the ground of disqualification. The appellant was granted leave to appeal to this Court.

Held: The appeal should be allowed.

The appellant was entitled to bring his action under the Municipal Code. Article 36 of the Code of Civil Procedure is an exception applicable only to actions instituted under that Code.

The expiration of respondent’s term of office and the repeal of the provision under which he is said to be disqualified, cannot be considered in the present case, because the issue is not the validity of respondent’s election but his petition for evocation, a separate demand in which he prays for the application of a provision still in force, that is art. 36 of the Code of Civil Procedure. This is a question of jurisdiction which the Superior Court should have decided on the motion to authorize the issuance of the writ of summons.

[Page 577]

APPEAL from a majority judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec, reversing a judgment of Ste-Marie J. Appeal allowed.

Micheline Corbeil and Pierre Messier, for the appellant.

Roy Fournier, Q.C., for the respondent.

The judgment of the Court was delivered by

PIGEON J.—Respondent, a grocer holding a permit for the sale of beer, was elected mayor of the municipality of Deschênes on May 15, 1967. Alleging the elected candidate’s absence of qualification, appellant instituted an action before a judge of the Provincial Court, on June 1, 1967, contesting the election under art. 314 and following of the Municipal Code.

Towards the end of the trial, respondent decided to challenge the jurisdiction of a judge of the Provincial Court in such a case and obtained a writ of evocation in the Superior Court; this writ was subsequently quashed on the merits by Paul Ste-Marie J. A majority decision of the Court of Appeal reversed this judgment, holding, in substance, that under art. 36 of the Code of Civil Procedure, a panel of three judges of the Provincial Court was required to deal with a contested election on the ground of absence of qualification.

The relevant part of the article is the following:

36. Notwithstanding any legislative provision inconsistent herewith, the Provincial Court has exclusive and ultimate jurisdiction in all suits or actions instituted in virtue of Chapter II of Title VI of Book Five and relating to the usurpation, holding or unlawful exercise of an office in a municipal or school corporation, whatever the law governing the same.

The case is heard and decided by a judge of the Provincial Court when the only matter in dispute is the real estate qualification of the defendant.

In all other cases, it is heard by three judges of the Provincial Court designated by the chief judge of such Court whose administrative jurisdiction covers the district in which the action is instituted.

[Page 578]

Like Rinfret J., dissenting in the Court of Appeal, I have underlined the words which clearly indicate that this provision, taken from a 1958 Act (6-7 Eliz. II, c. 38), applies only to actions instituted under a stated chapter of the Code of Civil Procedure comprising art. 838 to 843. In those provisions there is nothing tending to indicate that they govern proceedings for contesting municipal elections instituted under the Municipal Code; on the contrary, art. 843 reads as follows:

843. No procedure in contestation of the election of a mayor, alderman or municipal councillor shall be taken under the provisions of this chapter, except for absence of qualification.

When the present Municipal Code was enacted in 1916, the Code of Procedure in force, as the previous Code, included in its arts. 987 to 991 provisions substantially identical with those of art. 838 to 842 of the present Code. It is clearly a completely distinct and independent remedy that is provided in the Municipal Code of 1916, as in that of 1871, under the title “Contested elections” (art. 314 to 319). It must be specially noted that, up to 1958, the remedy provided by the Code of Procedure (or quo warranto) was always in every case within the exclusive jurisdiction of the Superior Court, whereas art. 315 of the present Municipal Code, like art. 348 of the previous Code, conferred the jurisdiction upon the Circuit Court or the Magistrate’s Court.

The duplicity of remedy in contested elections for absence of qualification was fully recognized by the courts long before the Legislature enacted the present Municipal Code. In 1898, the Court of Review held, in Allard v. Charlebois[1]:

[TRANSLATION] 2. After the expiration of the time allowed to contest a municipal election, the seat of a municipal councillor cannot be declared vacant on a writ of quo warranto, alleging an incapacity that no longer exists at the date of the issuance of the writ, even though such incapacity existed at the time of the election and would have been then a valid ground to contest such election before the competent tribunal, under art. 346 and following M.C.

[Page 579]

After a reference to six previous cases, DeLorimier J. said (at p. 324):

[TRANSLATION] In all these cases the principle has been established that the remedy given by art. 346 and following of the Municipal Code is not exclusive of proceedings in the nature of quo warranto (art. 1016 former Code of Procedure and art. 987 and following new Code of Procedure), when the person presently usurps public office in defiance of an express provision of the law.

In 1899, the Court of Review declared, in Sigouin v. Viau[2]:

[TRANSLATION] Considering that the petitioner by proving, as he did, that he is a real estate owner entered on the valuation roll, and that he owes and pays taxes to the corporation, has sufficiently established his interest in making the present petition, and that he was not obliged to prove that he was a municipal elector, art. 346 M.C. having no application to the present case;

In 1913, in a case in which it had to consider, in respect of a “quo warranto”, provisions of the Education Act similar to those of the Municipal Code, the Court of Appeal held, in Désaulniers v. Désaulniers[3], after an elaborate review of earlier decisions that:

[TRANSLATION] 1°. When a cause of ineligibility to a public office is also a cause of incapacity to hold it, the remedy by quo warranto is open at all times against the person subject thereto who holds the office.

2°. The qualification of being able to read and write is required by the Act, not only as a condition of eligibility to the office of school commissioner, but as a condition of capacity to hold it.

Carroll J.A., dissenting, said however (p. 90):

[TRANSLATION] Effect must be given to section 145 of the Education Act, which provides that an election may be contested on the ground of disability of the candidate and appoints a tribunal, to the exclusion of any other, to rule upon such disability. If we do not accept the too absolute doctrine that this section covers all disabilities, it must be said that its effect is to cover temporary disabilities, if action is not taken within the time given, just as a relative nullity is covered, if a time is given to invoke it and action is not taken in that time.

[Page 580]

The Legislature began in 1925 to concern itself with the duplicity of remedy in the case of the election of an ineligible person. The Act 15 Geo. V, c. 84, first added by s. 1 the following paragraph to art. 987 of the Code of Procedure:

No complaint based on incapacity to hold municipal offices, provided by paragraph 12 of article 227 of the Municipal Code, may be brought under the foregoing provisions.

Then, after a section redefining this incapacity as follows: “Whoever does not know how to read or write”, s. 3 added to art. 318 of the Municipal Code concerning the judgment in a contested election case: “Such judgment is final and without appeal”. The following year, by 16 Geo. V, c. 66, art. 987a was added to the Code of Procedure, which the present Code reproduces in substance as art. 843.

At the hearing, respondent’s counsel pointed out that the legislature had at the same time, by s. 1 of c. 36, inserted an analogous provision in the Cities and Towns Act but not in the Municipal Code. He contended that it had to be inferred from this that the legislature considered that the provisions of the Municipal Code on contested elections did not apply to the case of an election that is void by reason of the incapacity of the elected person. This argument must be rejected; repetition adds nothing to the effect of a legislative provision, it is only a matter of convenience, a somewhat doubtful convenience. Be that as it may, the preceding year enactment, which was repealed only in 1949 (13 Geo. VI, c. 70, s. 3), shows on the contrary that the legislature considered that there was another remedy.

Let us note in passing what Adjutor Rivard J. said of the Act of 1926 in Legault v. Paiement[4]:

[TRANSLATION] Respondent holds the office of mayor by virtue of a municipal election, held on January 14, 1925, with all the required formalities. If this election was not valid, it should have been contested under Art. 315 M.C. The case is not similar to those where a quo warranto has been allowed, because there had been no election or only a semblance of an election. Art. 987-a C.P., added by the Act 16 Geo. V, chap. 66 (in force on

[Page 581]

March 24, 1926), definitively settles this question: but even under the law in force in 1925, as interpreted by the Courts, there could not be in this particular case, an action under Art. 987.

It must now be noted that the Code of Procedure of 1965 removed practically any difference between the procedure it prescribes for the remedy contemplated in art. 838 (“quo warranto”) and that which the Municipal Code provides for contesting elections (art. 314 to 319). In both cases it is an ordinary action. The only difference is that art. 839 of the former requires a $200 deposit and art. 317 of the latter only $100. It is no longer necessary in the first case to petition for the issue of the writ, as was required before by the combined effect of art. 980 and 988.

In this case it seems that the majority in the Court of Appeal thought that the action was brought under the Code of Procedure and not under the Municipal Code; in fact, Owen J.A. said:

Under the first paragraph of Article 36 C.P. notwithstanding any legislative provisions inconsistent therewith, the Provincial Court has exclusive jurisdiction in this matter.

However, if the record is examined, one finds that the description of the action in the endorsement on the writ is: “Contestation d’élections”.

The main conclusions are as follows:

[TRANSLATION] DO DECLARE that the defendant Jean-Paul Poirier could not be elected mayor of the Municipality of the Village of Deschênes, mise-en-cause, at the election held on May 15, 1967, and consequently that the election is void as to him;

DO DECLARE the plaintiff René Paulin elected Mayor of the Municipality of Deschênes.

Of necessity these conclusions, in such a case, as well as the facts alleged, would no doubt avail as well in a demand under the Code of Procedure as in an action to contest an election. This is the unavoidable consequence of the simplification and standardization of the procedure as well as of the attribution of jurisdiction to the same Court. This still leaves the two remedies quite distinct, and each governed by its own rules.

[Page 582]

It is quite true that the duplicity of remedy results in the same matter, an elected person’s failure to qualify for municipal office, being judged by a different tribunal according to whether the action is brought as for contested election or as a “quo warranto”. However, the Act 16 Geo. V, c. 36, shows that this is just what the legislature intended. By the same section the right to contest an election under the Cities and Towns Act, when the elected person was not qualified, is expressly re-enacted followed by a provision which in such case also contemplates, in the alternative, a recourse to the remedy provided in the Code of Procedure.

With all due respect, I cannot accept the reasoning of Taschereau J. based on the decision in Bégin v. Plante[5]. Article 36 of the Code of Procedure does not enact absolutely that [TRANSLATION] “it is the Provincial Court to the exclusion of any other Court which must decide” every question of qualification. This provision only applies to “all suits or actions instituted in virtue of Chapter II of Title VI of Book Five”. This restriction cannot be disregarded in order to substitute for it a concept of uniformity which is not that of the legislature. We have here a very special provision and, it must be stressed, its result is in no way a general rule.

In this case plaintiff was entitled to bring his action under the Municipal Code. He did so in the prescribed manner under that Code and at the proper time. Article 36 of the Code of Procedure is clearly an exception. The defendant, the respondent who prays for its application, has to show that it is applicable in the present case. This is what he has not succeeded in doing, the proceedings having been instituted as an action to contest an election and not under art. 838 of the Code of Procedure.

In order to show that this action should be considered as instituted under the last mentioned provision, respondent has contended that in art. 314 of the Municipal Code the word “election” means “voting” and the word “incapacity” must only be understood as meaning that of the electors. This contention scarcely deserves attention because no reason has been given

[Page 583]

so to depart from the litteral meaning of the provision which is also that which the Courts have adopted for a long time.

Respondent did not fail to underline the fact that his proceedings in evocation have delayed the case so long that his term of office has expired before the validity of his election could be the object of a judicial decision, and, moreover, that the legislature has repealed the provision under which he is said to be unqualified for election. This repeal is a result of the new art. 227 of the Municipal Code, enacted by s. 8 of the Act 17 Eliz. II, c. 86, that came into force on December 18, 1968. This cannot be considered in the present case, because the issue is not the validity of respondent’s election but his petition for evocation, a separate demand in which he prays for the application of a provision still in force, that is art. 36 of the Code of Procedure. In a matter of public interest, this is a question of jurisdiction on which great differences of opinion have appeared and this appeal was allowed in view of settling the question.

On this point I must observe, with all due respect for the judge who authorized the issuance of the writ of summons, that the difficulty of a question of law does not dispense him from the obligation of deciding it. This obligation is imposed upon him by the explicit words of art. 847 C.P. in conformity with recent authority: (City of Montreal v. Benjamin News[6]). As is apparent in the present case, the suspension of proceedings is not without serious inconvenience; it often frustrates plaintiff’s recourse.

The record shows that the inscription in appeal from the judgment dismissing the writ of evocation was not served upon those who were third parties in Superior Court, specially the inferior court and the municipality. Seeing that appellant has not called this fact to our attention, it does not seem necessary to consider, in view of the conclusion on the merits, whether there was res judicata according to the decision in Goulet v. St-Gervais[7].

For these reasons, I would allow the appeal, set aside the judgment of the Court of Appeal,

[Page 584]

restore the judgment of the Superior Court quashing the writ of evocation, with costs against respondent in all Courts, and order that the record of the action in contestation of election be returned to the Provincial Court of the district of Hull.

Appeal allowed with costs.

Solicitors for the appellant: Lemay, Paquin & Corbeil, Montreal.

Solicitor for the respondent: R. Fournier, Hull.

 



[1] (1898), 14 Que. S.C. 310.

[2] (1899), 16 Que. S.C. 143 at 147, 5 R de J. 410.

[3] (1913), 22 Que. K.B. 71.

[4] (1926), 41 Que. K.B. 525 at 528.

[5] [1969] Que. Q.B. 238.

[6] [1965] Que. Q.B. 376.

[7] [1931] S.C.R. 437, [1931] 3 D.L.R. 604.

 

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